Harbans Rai v. Sriniwas Rao Kalin — 1911 DIGILAW 286 (ALL)

JUDGMENT : KARAMAT HUSAIN, J. On the 3rd of October, 1887, Kalu Rai, Kauleshar Rai, Harbans Rai, Har Prasad Rai, Ganga Rai and Madho Rai, made a mortgage with possession in favour of Pandit Suba Rao. In paragraph 4 of the mortgage-deed they said:— “Out of the 4 anna share sold in the aforesaid taluqa, the sir land in mauza Harpur, belonging to us, the executants, and appertaining to the aforesaid share is under a deed of usufructuary mortgage, in possession of Mr. Charles, the owner of the indigo concern in mauza Mahevva and in that of Chhittu Khan and Usman Khan, residents of Zamania. The term of the said bond is to expire on the Puranmashi of Jeth Sudi, 1895 Fasli. The amount of the jama in respect of the aforesaid bond is not included in Rs. 4,203 7-6. We shall get the said land redeemed within the aforesaid period and assign the same in accordance with the stipulations herein-under specified to the decree-holder for making collections in respect thereof, to enable him to realize the amount due to him. In the event of defult and connivance on the part of us, the executants, the decree-holder shall, if assistance is given by us, the executants, redeem the aforesaid mortgage personally and at his own cost, take possession of the land himself, make collections in respect thereof in accordance with the stipulations hereinafter specified. 2. The plaintiffs, who are the representatives of the mortgagee with possession under the mortgage-deed, dated the 3rd of October, 1887, instituted a suit for possession of the sir, measuring 36 bighas, 13 biswas, 111/4 dhurs of land in mauza Harpur, to which the stipulation set forth in paragraph 4 of the mortgage-deed, dated the 3rd of October, 1887 applied, With the suit for the possession of other property we are not concerned in this appeal. In paragraph 10 of the plaint, the plaintiffs stated as follows:— “It appeared on enquiry that the lands in mauza Harpur were the cultivatory holdings of the defendants and the defendants could have put the principal mortgagee or the plaintiffs in actual possession thereof. But when the said persons did not make over the possession and even refused to pay the rent entered in the papers, the plaintiffs brought a suit for arrears (of rent) against the defendants. But when the said persons did not make over the possession and even refused to pay the rent entered in the papers, the plaintiffs brought a suit for arrears (of rent) against the defendants. At that time the defendants represented themselves to be the owners of the said lands. The Revenue Court directed the defendants to bring a regular suit, and the suit brought by the defendants was dismissed by the Civil Court on the 14th of December, 1908.” 3. Paragraph 11 is as follows:— “If the plaintiffs succeed in the suit for arrears of rent, they shall get the rent for the 3 past years, according to their share. But in case the plaintiffs get the actual possession they shall make a large profit from the said land. According to the terms of the document, the plaintiffs are in every way entitled to get actual possession of the said lands.” 4. The defendants, Madho Rai, Ganga Rai and others, in their written statement with reference to the holding in dispute, made the following statement:— “It is admitted that the land in Harpur is an occupancy holding; but it is not admitted that defendants could deliver possession thereof. The fact that possession was not delivered is admitted. The claim in respect of the laud in Harpur is wrong for this reason also that it is an occupancy holding. The relation of landlord and tenant exists between the parties aud a Civil suit cannot be brought in respect thereof. The defendants have been in possession of the land in Harpur since 1896. As a matter of policy, the plaintiffs have not entered in the plaint the time of the commencement of the defendant's possession.” 5. The written statement of Harbans Rai and others contains the following statement:— “The cause of action arose in 1897 and 1898 as alleged by the the plaintiffs. Even if there were any right it became extinct on account of delay.” 6. One of the issues framed by the Court below was:— “Is the claim in respect to item, (a) [i.e., the cultivatory holding, measuring 36 bighas, 13 biswas and 111/4 dhurs in mauza Harpur] cognizable by a Civil Court.” 7. Even if there were any right it became extinct on account of delay.” 6. One of the issues framed by the Court below was:— “Is the claim in respect to item, (a) [i.e., the cultivatory holding, measuring 36 bighas, 13 biswas and 111/4 dhurs in mauza Harpur] cognizable by a Civil Court.” 7. The finding of the court below on this point is in the following terms:— “The objection as to the jurisdiction of a Civil Court to entertain the suit is based on the fact that the plaintiffs sued the defendants as tenants and obtained a decree for arrears of rent. It is argued that the defendants being the plaintiffs tenants in respect of the land claimed cannot be dispossessed by a suit in a Civil Court. It may be said in reply that the suit is not for ejectment of the defendants as tenants, but is one for possession as mortgagees. Before the Tenancy Act came into force usufructuary mortgages of occupancy land were recognised as valid, and there was nothing to show that these mortgages could not be made by a tenant in favour of his Zamindar. The plaintiffs could have got no relief on their cause of action in the rent court, and the suit is clearly cognizable by a Civil Court.” 8. Having come to the conclusion that the suit was cognizable by the Civil Court, the court proceeded to determine how much of 36 bighas, 13 biswas and 111/4 dhurs was mortgaged with possession to the plaintiff's predecessor-in-title and found that the only evidence produced by them showed that an area of 20 bighas, 6 biswas and 18 dhurs of sir was mortgaged. That court, therefore, gave the plaintiffs a decree for the recovery of possession of 20 bighas, 6 biswas and 18 dhurs of sir land in mauza Harpur. The defendants come to this court and out of the five pleas in the memorandum of appeal, the first and the second pleas are pressed by their learned Vakil. That court, therefore, gave the plaintiffs a decree for the recovery of possession of 20 bighas, 6 biswas and 18 dhurs of sir land in mauza Harpur. The defendants come to this court and out of the five pleas in the memorandum of appeal, the first and the second pleas are pressed by their learned Vakil. In support of the second plea, the substance of argument is that, although the mortgage with possession of the holding was executed prior to the Agra Tenancy Act (II of 1901) which came into force on the 1st of January, 1902, yet as the possession of the holding in suit was not taken by the mortgagors and delivered to the plaintiffs till after the coming into force of that Act, no suit for possession of the holding could be instituted. In support of this contention he relies on the remarks of STANLEY, C.J., in Harnandan Rai v. Nackchhedi Rai,[1906] A.W.N., 302. The learned Chief Justice is reported to have made the following remarks:— “It is contended that as no default was made until the 22nd of June, 1902, and that date was subsequent to the passing of Act No. II of 1901, this deed did not operate as a deed of mortgage until after Act No. II of 1901, had found its place on the statute-book, and the contention of the learned counsel for the respondent is that the language used in the deed shows that it was only a money-bond in its inception and did not operate and was not intended to operate as a deed of usufructuary mortgage until the date on which default was made. After carefully considering the words used in the deed we agree with the interpretation which respondent's learned counsel puts upon the deed.” 9. This ruling in my opinion has no application to the facts of the present case. In the case before us, there is nothing to show that the mortgage of the 3rd of October, 1887, was not a complete and enforcible deed prior to the coming into force of Act II of 1901. The portion of the deeds which I have already quoted very distinctly shows that that deed was operative according to the mortgagors in Jeth Sudi, 1295 Fasli. The portion of the deeds which I have already quoted very distinctly shows that that deed was operative according to the mortgagors in Jeth Sudi, 1295 Fasli. The allegations in the written statement of Madho Rai and others distinctly show that they have been in possession of the land in Harpur since 1896, a date long before the date on which the Agra Tenancy Act came into operation. Thus there is no force in the contention of the learned Vakil for the appellants that the plaintiffs cannot sue now to obtain possession of the occupancy holding. In Babu Lal v. Ram Kali,[1905] 3 A.L.J.R., 40 Banerji, J., observes: “The Act cannot have retrospective effect, and if what the tenant did was valid under the law which was in force at the time when the mortgage was made, and if the mortgagee was entitled to enforce his mortgage before the passing of the new Act, he would be equally entitled to do so after the passing of that Act.” 10. The above remarks contain a sound proposition of law. I therefore hold that in the present case the representatives of mortgagee with possession are entitled to enforce their mortgage. The first plea taken by the learned Vakil for the appellants is that the relation of landlord and tenant exists between the plaintiffs and defendants, and that being so, the plaintiffs cannot oust the defendants from the actual possession of the holding in suit through a Civil Court. In support of this proposition, he relies on the allegations made by the plaintiffs in paragraphs Nos. 10 and 11 of the plaint and also on the judgment of the Subordinate Judge, dated the 14th of December, 1908, to be found on page 81 of the respondent's book. The material portion of the judgment of the Subordinate Judge is in the following terms:— “It appears that at the last settlement, Phenku Rai, the father of the plaintiff, was the occupancy tenant of the plots in question and the plaintiff admits that he has succeeded to the rights of his father. Subsequently he and several others acquired the zamindari interest in the share in which the lands lie, and then all of them gave a usufructuary mortgage of the zamindari interest to one Suba Rao who is now represented by the defendants. I thus find that the plaintiff is a tenant of the holding. Subsequently he and several others acquired the zamindari interest in the share in which the lands lie, and then all of them gave a usufructuary mortgage of the zamindari interest to one Suba Rao who is now represented by the defendants. I thus find that the plaintiff is a tenant of the holding. He is recorded as such even at the recent partition of 1905. He does not become a Zamindar because he purchased a fractional share of the zamindari to which the land appertains. The suit is therefore, dismissed with costs.” 11. This judgment in the absence of anything to the contrary, shows that the defendants, when they mortgaged their holding on the 3rd of October, 1887, to Suba Rao, were the tenants of this holding and not the owners of it. That being so, the allegation of the plaintiffs in paragraphs 10 and 11 of the plaint that the defendants are their tenants is not specific enough to show that at the time of the mortgage they were the owners of those plots, and that after the mortgage the relation of landlord and tenant between the parties came into existence by any act of the plaintiffs and if at the date of the mortgage, the defendants were the tenants and if they mortgaged their holding to the predecessors-in-title of the plaintiffs, the plaintiffs are evidently entitled to institute a suit for possession as mortgagees in the Civil Court, Such a suit cannot be cognizable by a Revenue Court. 12. For the above reasons, I would dismiss the appeal with costs. CHAMIER, J. I agree that the appeal should be dismissed. I wish to add a few words. 13. The suit is for possession of land on the basis of an usufructuary mortgage mads in October, 1887. At the date of this mortgage the defendants were tenants or occupancy tenants of the land. The land was mortgaged to other persons. The defendants undertook to redeem the land and give the plaintiffs’ predecessors, possession at the end of Jeth, 1295 Fasli. From the written statement it appears that the defendants got possession of the land in 1896 A.D. That was before the passing of the Agra Tenancy Act. Before that Act was passed, an usufructuary mortgage of his holding by a tenant-at-will or occupancy tenant could be enforced in a Civil Court. From the written statement it appears that the defendants got possession of the land in 1896 A.D. That was before the passing of the Agra Tenancy Act. Before that Act was passed, an usufructuary mortgage of his holding by a tenant-at-will or occupancy tenant could be enforced in a Civil Court. Brij Mohan Das v. Algu,[1903] I.L.R., 26 All., 78. According to the view expressed in Harnandan Rai v. Nackchhedi Rai, [1906] 2 A.W.N., 302 a mortgage by an occupancy tenant made before the passing of the Agra Tenancy Act, may in certain circumstances be affected by the Act. But according to the case just cited and according to Babu Lal v. Ram Kali(,[1906] 3 A.L.I.R. 40 the mortgage in question in the present case is not affected by the Act because the mortgage took effect and gave the plaintiffs a right to claim possession before the Act was passed. The passing of the Act did not deprive the plaintiff of this right. 14. The question whether this suit is maintainable in the Civil Court seems to me to be free from difficulty. The defendants were tenants at the date of the mortgage. This is a suit on a mortgage, and I see no reason, why the plaintiffs should be deprived of their right to enforce the mortgage merely because they made an attempt to recover rent from the defendants. They were met by the plea that the defendants were mortgagors and the plaintiffs mortgagees of the land. We do not even know whether the plaintiffs’ attempt to recover rent was successful or not. I agree that the appeal be dismissed with costs. BY THE COURT :— The order of the Court is that the appeal be dismissed with costs.